ANC: SCA ruling undermines democracy

The ANC has voiced its disappointment at the Supreme Court of Appeal ruling that the National Prosecuting Authority produce the record of its 2009 decision to suspend criminal charges against President Jacob Zuma.

“It is clear that democracy can be undermined by simply approaching courts to reverse any decision arrived at by a qualified organ of state,” spokesperson Jackson Mthembu said on Tuesday.

Earlier, the court ordered the NPA to “produce and lodge” the record of the decision with the registrar of the court within 14 days.

The Democratic Alliance was first appellant in the case.

“We have noted that the decision ... does not reverse the national director of public prosecution’s decision itself, but it focus[es] on procedural aspect[s], such as, whether the DA has the right to call for the review of the case and on the standing of the DA as a legal persona,” said Mthembu.

While the matter received “a deeper legal analysis”, the ANC wanted to highlight various matters.

These included the “continued attempt by the DA to use the courts to undermine and paralyse government”, and the granting of “blanket permission to political parties to review any state decisions using courts”, Mthembu said.

He questioned how the DA would conduct a review of the case when it could not have access to all the information which informed the NDPP’s decision to withdraw the charges.

The matter should not go unchallenged as it might have huge implications for effective governance, including current and future decision of any organ of state, Mthembu said.

He said the ANC nonetheless would study the entire judgment together with its legal representatives with a view to challenging it.

Meanwhile, DA leader Helen Zille hailed the ruling.

“The judgment held that the NPA must make available the requested record of decision it used when then acting national director of public prosecutions, Mokotedi Mpshe, made the decision to drop charges against Jacob Zuma,” she told reporters at Parliament on Tuesday.

The DA wanted a review of the decision, by Mpshe, to drop charges against Zuma before he was elected president.

“The record of decision will shed light on whether Mokotedi Mpshe made the decision to withdraw the prosecution on rational, legal grounds, or whether he made the decision based on political considerations,” Zille said.

The SCA judgment had also affirmed that a decision to discontinue a prosecution was reviewable by the courts, and that the DA as a political party, had the legal standing to bring such a review application.

Responding to a question on how she thought the matter would now move forward, she suggested that “the longest route of delay would be followed” by Zuma and his legal team.

Corruption charges had “hung over” Zuma long before he was elected president of the ANC.

“South Africans have a right to know what the defence is to those allegations, and whether there is substance in them or not—after all, he is now the president of this country.”

However, the president and his legal team had “dragged this particular case ...
through every single nook and cranny of filibustering, delaying and obfuscation, to avoid it ever coming to court”.

She expected Zuma and the NPA would now “use every legal trick in the book to delay, stall and sidetrack proceedings, in an attempt to win time for Jacob Zuma to serve two terms as president”.

The presidency said in a statement earlier on Tuesday, that it had noted the SCA’s judgment.

“We wish to emphasise that the decision taken by the acting national director of public prosecution on April 6, 2009, not to prosecute President Jacob Zuma, stands.”

The SCA, in its judgment, had explicitly stated that the “appeal does not concern the merits of a decision taken… by the acting NDPP to discontinue a prosecution ... against Mr Jacob Zuma’‘, the presidency said.

The record should, however, exclude written representations made on behalf of Zuma and any consequent memoranda or reports prepared in response, or oral representations, if their production would breach confidentiality agreements.

The SCA further held that the record should consist of the documents and material relevant to the review, including those before Mpshe when he made his decision.

NPA spokesperson Mthunzi Mhaga said on Tuesday the authority would study the judgment to determine the next legal steps.

“We wish to state that we still stand by advocate Mpshe’s decision and remind all that these were preliminary issues with no direct impact on his decision not to prosecute.”